Habib v Radio 2UE Sydney Pty Ltd

Habib, a former solicitor, sought payment of costs from the fruits of a proceeding. The application was made by notice of motion in the Court of Appeal. The Court of Appeal, constituted by Leeming JA, considered the nature of the Supreme Court and its Divisions, and the assignment of proceedings within the Supreme Court.

The primary legal issue before the Court was how to deal with an application for payment of costs made by a former solicitor, which had been brought by way of motion in the Court of Appeal, rather than through the appropriate procedural mechanism within a Division of the Supreme Court. The Court was required to determine whether it had the power to remit the application to the correct Division for determination.

Leeming JA reasoned that the Supreme Court Act 1970 (NSW) conferred broad powers to assign proceedings within the Court. Section 51 of the Act specifically allows for the remittal of proceedings from one Division to another. His Honour determined that the notice of motion, although procedurally irregular in its presentation to the Court of Appeal, could be treated as a summons in the Equity Division and remitted accordingly. This approach ensured that the substantive application for costs could be heard and determined by the appropriate judicial officers.

The Court ordered that the notice of motion filed on 3 July 2013 stand as a summons in the Equity Division and be remitted to that Division for continuation and disposal pursuant to s 51 of the Supreme Court Act. The proceedings were subsequently listed for directions before a Registrar in the Equity Division.